At the time of this blog’s publication, at least 60% of the U.S. population has received at least one dose of the COVID-19 vaccine and 51% of the population has been fully vaccinated. Despite these promising figures, on July 27, 2021, the CDC released updated guidance on the need for urgently increasing vaccination coverage and a recommendation for even fully vaccinated people to wear masks in public indoor spaces.
Vaccination requirements are gaining in prevalence in various settings. More than 200 colleges and universities are requiring vaccination of at least some students or employees ahead of the fall semester, and many companies have already announced vaccine requirements for at least some of their employees.
Vaccination requirements are gaining in prevalence in various settings. More than 200 colleges and universities are requiring vaccination of at least some students or employees ahead of the fall semester, and many companies have already announced vaccine requirements for at least some of their employees.
Employer Vaccination Policies
Under federal law, an employer may require all of its onsite employees to get vaccinated against the coronavirus, subject to two exceptions:
Note: Employers may also be subject to collective bargaining agreements that require them to negotiate with represented employees prior to implementing a unilateral change in vaccination requirements.
- An employee’s religious belief.
- An employee’s medical condition(s).
Note: Employers may also be subject to collective bargaining agreements that require them to negotiate with represented employees prior to implementing a unilateral change in vaccination requirements.
Religious Belief
Under Title VII of the Civil Rights Act of 1964, employers with 15 or more employees cannot discriminate against employees based on, in relevant part, their religion. To receive Title VII protection, an employee must demonstrate that they have a sincerely held religious belief. They must also show that not receiving a vaccine would not impose an undue hardship on the employer.
Medical Condition(s)
An employee with a qualifying medical condition recognized by the Americans with Disabilities Act of 1990 may also be excepted from an employer’s vaccine requirement if that medical condition will put the employee’s health at risk if they receive the vaccination. Again, however, the exemption must not place an undue hardship on the employer.
State Prohibitions
9 states have enacted 11 laws with prohibitions on vaccine mandates, with many prohibiting state and local government officials from requiring vaccinations. Private schools and employers in those states can thus still enact vaccine mandates.
With the passing of Senate Bill 968 on May 7, 2021, signed by Governor Greg Abbot, Texas employers are prohibited from requiring proof of vaccination—with an important caveat. The restriction prevents business from requiring customers to show proof of vaccination before allowing them on their premises, but it does not contain restrictions for employees.
Companies Already Requiring Vaccination
Many companies have already announced a coronavirus vaccination mandate of at least some of its employees. Delta Air Lines, DoorDash, Facebook, Ford, Google, Lyft, Microsoft, Netflix, Twitter, Uber, Walgreens, The Walt Disney Company, and Walmart are all among those companies who are requiring at least some of its employees to demonstrate proof of vaccination as a condition of their employment.
A Case Study
On April 1, 2021, Houston Methodist Hospital announced a policy requiring employees be vaccinated against the coronavirus by June 7, 2021. The named plaintiff and 116 other employees sued to block the requirement and the terminations of those who refused to comply with the mandate, arguing the employer unlawfully forced its employees to be injected or be fired.
The Southern District of Texas, in its order dismissing the lawsuit, observed that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. Of course, receiving a COVID-19 vaccination is not an illegal act and it carries no criminal penalties.
The court likewise dismissed the argument that the injection requirement violates public policy, as Texas does not recognize this exception to at-will employment. In concluding remarks, District Judge Lynn N. Hughes succinctly noted: “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
The Southern District of Texas, in its order dismissing the lawsuit, observed that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. Of course, receiving a COVID-19 vaccination is not an illegal act and it carries no criminal penalties.
The court likewise dismissed the argument that the injection requirement violates public policy, as Texas does not recognize this exception to at-will employment. In concluding remarks, District Judge Lynn N. Hughes succinctly noted: “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”
Conclusion
Employers may elect to require vaccinations in their workplace, but they must comply with various state and federal laws. With the ever-changing guidance from the CDC and the varying approaches of state governments with respect to vaccinations, employees would be wise to seek legal counsel for any questions about an employer’s right to require them to receive a vaccine.
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